Question: How does one determine whether a sign regulation is “content-based”? What standards must a content-based sign regulation satisfy to be constitutionally valid? 

Short Response (10 pt. each)

Provide a complete answer to each of the following 5 questions.  Please use full sentences in writing your answers—avoid the use of bullet points and other outlining devices.   

1. How does one determine whether a sign regulation is “content-based”? What standards must a content-based sign regulation satisfy to be constitutionally valid? 
2. The federal Fair Housing Act prohibits housing discrimination based on both disparate treatment and disparate impact. What are the basic differences between the two types of claims? 
3. Define “exaction.” When a government requires an exaction, what must it demonstrate to avoid a takings claim?
4. Describe the basic features of prior appropriation water law. How do water rights for federally-recognized Native American tribes fit within this system?    
5. What resources are considered to be covered by the public trust doctrine? How are governments constrained in what they can do with those resources?

Essay (50 pt.)

Write an essay that covers the legal issues contained in the following narrative.  Remember, for each issue/sub-issue you must: (a) identify and define the relevant legal principle; (b) cite to the facts from the story that are implicated by the legal principle; and (c) determine whether those facts demonstrate satisfaction of the legal principle.  Limit your paragraphs to one issue per paragraph.  Note: This question is only loosely based on stories from other sources.  Do not try to bring into your answer additional facts from other sources; stick to the facts as stated here.

Two-by-Two

Noah is a carpenter living in a residential neighborhood in Mona, Utah, near Mt. Nebo.  In addition to his house, Noah maintains a small shed in his backyard that he uses as a carpentry shop.  Zoning for Noah’s neighborhood allows for residential uses as outright permitted uses.  The zoning ordinance also allows accessory uses as outright permitted uses, so long as they are customary, incidental, and subordinate to the residential uses.  Larger/more intensive accessory uses can be allowed, but only through a conditional use permit process.  In response to a neighbor’s complaint years ago, the city zoning code enforcement office investigated Noah’s carpentry shop and found that the use met the standards for outright permitted accessory uses.  

Like most Utahns this winter, Noah marveled at the “atmospheric river” storms that blanketed the mountains (including Mt. Nebo) with hundreds of inches of snow.  Noah is now concerned about the water run-off expected to come from the melting of all of that snow.  Convinced that there will be significant flooding in the area, Noah decides that he needs to use his carpentry skills to build a boat – a really big boat – large enough to hold his family and all of their various pets.  To facilitate this, Noah decides that he needs first to build a much bigger shop.  The dimensions of this shop would be huge – as large as many of the houses in the neighborhood. 

Wanting to remain in compliance with the city’s zoning ordinance, Noah realizes that he will need to get a conditional use permit for this new structure.  Being very detail oriented, Noah compiled reams of evidence demonstrating compliance with the zoning ordinance’s conditional use permit standards.  Noah submitted this evidence, along with his permit application (and required permit fee), to the city planning office.  The friendly planner at the counter was impressed with how much information Noah provided with the application and told him that his application was complete. 

The Mona city council has also been worried about possible flooding.  Based on projections from state and federal agencies, the city is preparing a number of initiatives to handle the expected flooding.  One of the city’s concerns is the amount of developed structures already in the likely flood path, and the potential that additional structures could compound the flood dangers (due to additional impervious surfaces and flood debris).  As a consequence of these concerns, the city council decided to pass a moratorium to suspend all land use permitting city-wide for the next six months.  The city council passed the moratorium at its regular weekly meeting, without providing advance notice to land owners in the city. 

The week after the city council’s action, Noah called the city planning office to get an update on his conditional use permit application.  The planner on the phone informed Noah about the moratorium and stated that his application could not progress until the moratorium was over.  Alarmed by the news and the impact it would have on his boat construction plans, Noah decided to move ahead with construction of the new, expanded shop without obtaining his permit. 

The first morning of construction activity, the city zoning code enforcement officer came over to Noah’s construction site and served him with a citation (with a $1,000 fine!) for building without the required zoning (and building) permits, and instructed Noah to stop work on the new shop immediately.  Noah pointed out that his neighbor is currently building a backyard pool, which would likely create more impervious surface (and, hence, negative flooding impacts) than Noah’s new shop.  When Noah told the zoning compliance officer how unfair it was that his neighbor could continue building while Noah had to stop, the officer noted that backyard pools are considered outright permitted accessory uses, and left the scene without further investigating the pool project. 

Noah, your great uncle, knows that you have been taking a land use law course as part of your planning/real estate development master’s program and calls you on the phone to see what you think of the situation.  Specifically, he wants to know (1) if the moratorium is valid; (2) whether the moratorium applies to his conditional use permit application (given that he applied the week before the moratorium); (3) if the city violated procedural requirements by failing to provide advance notice to land owners of its action to adopt the moratorium; (4) if he legally can proceed with construction of his new shop without a conditional use permit given that some accessory uses are allowed outright; (5) if he can’t proceed with construction, does the city owe him compensation for harm caused by the moratorium; and (6) whether his perceived unfair treatment compared to that of his neighbor (the one building the pool) gives rise to some sort of legal claim.  What do you tell him?